Murchie v. Wentworth

64 A. 507, 74 N.H. 3, 1906 N.H. LEXIS 48

• Court: Supreme Court of New Hampshire
• Decided: July 2, 1906
• Status: Published

Opinion

Walker, J.

It is conceded that as against the assignor, the debtor, the seizure of the property upon the executions and the subsequent proceedings leading to a sale of it, before the assignment was made, were valid. The officer took exclusive possession of the property, and both he and the debtor understood at the time of the assignment that there had been no abandonment of the levy. If the property had been sold under the levy thus begun, the debtor’s interest therein would have been legally disposed of. It would have been bound by the execution lien. The fact that it made a common-law assignment to the plaintiffs for the benefit of its creditors, after the seizure and before the time advertised for the sale, did not confer upon the assignees rights in the prop erty not possessed by tbe assignor. If it was bound by tbe levy,, tbey were. If it is assumed tbat tbe proceedings under tbe levy were voidable by attaching creditors, because the officer’s possession was not sufficiently exclusive, it does not follow tbat tbe assignees can avoid tbe levy fo"r tbat reason. If they are entitled, to an injunction against the levy, it must be because tbey have ásuperior title to tbe property; but it has been determined tbat tbe title of a common-law assignee, in tbe absence of statutory provision, is merely tbe title of tbe assignor, and tbat if the latter bad no enforceable right to tbe property, tbe former bad none. Adams v. Lee, 64 N. H. 421; Peterborough Savings Bank v. Hartshorn, 67 N. H. 156, 158; Ætna Insurance Co. v. Thompson, 68 N. H. 20; Hurlbutt v. Currier, 68 N. H. 94; Thompson v. Esty, 69 N. H. 55, 76; Bur. Ass., s. 349; 4 Cyc. 218. The plaintiffs are not entitled to tbe rebef sought.

Exception overruled.

All concurred.